GUILTY UNTIL EXPUNGED: HOW MINNESOTA’S PUBLIC RECORDS POLICIES NEEDLESSLY BURDEN RENTERS

By: Ashley Meeder, Vol. 105 Staff Member

If you have $285 for a filing fee and 20 minutes to fill out a form in Minnesota, you can ruin someone’s life.[1] Filing an eviction complaint starts a legal battle, but renters are wounded before they even enter a court room. In Minnesota, evictions are publicly accessible upon filing.[2] However, these records only reflect that a complaint was filed, not whether the eviction had merit or even went to trial.

Renters are needlessly exposed to the devastating chain of events that often follows an eviction when their records are publicly accessible before their eviction case has been resolved. Minnesota’s lawmakers should pass legislation to seal eviction records until the landlord obtains a favorable judgment at trial.

I. OVERVIEW OF EVICTIONS IN MINNESOTA

Evictions are a cause of action for landlords to reclaim possession of their property.[3] Landlords can file eviction complaints if tenants breach the lease or refuse to move when the lease ends,[4] but the most common reason landlords file evictions is for non-payment of rent.[5] Notably, in most non-payment cases, tenants are typically only two months—and less than $2,000—behind on rent.[6] Landlords and tenants can either handle eviction complaints outside of the trial process, or they can ask a court to weigh legal and factual issues and assign a judgment to a winning party. Tenants almost always suffer negative consequences regardless of how the parties (or judges) resolve the issue.

When landlords and tenants handle evictions outside of a trial, they usually resolve the issues through settlements.[7] However, settling does not mean the tenant has broken the law or warrants a marred rental record—sometimes, tenants settle defective evictions simply out of fear of involuntary displacement, i.e., rapidly executing an unplanned move or risk law enforcement “remov[ing] the [tenant], family, and personal property from the premises.”[8] Alternatively, a landlord may withdraw their complaint. This is most likely to occur when a landlord files the complaint as a heavy-handed negotiation tactic in a dispute and the tenant responds to their demands.[9] Like settlements, tenants nevertheless carry the eviction on their record.

When cases go through trial, the court enters a judgment in favor of the winning party. Landlords that win judgments can remove their tenants and recover the premises.[10] However, “winning” a judgment is misleading— many tenants cannot appear in court and landlords win by default.[11] Alternatively, tenants that win judgments do not have to move.[12] Tenants obtain favorable judgments by winning on legal issues (e.g., the landlord had no legal right to possession of the premises, failed to give proper notice,[13] alleged breach vaguely or over something outside of the lease, named someone who does not live at the property as a defendant, or was trying to collect rent without a rental license).[14] Tenants also prevail when landlords cannot prove their allegations. In cases where tenants win, judges may, but are not required to, expunge the record.[15]

Regardless of the result of the eviction action, tenants may request an expungement to seal their records.[16] However, expungements are another complex process that requires time, money, and legal skills to complete. Additionally, expungements can take months to resolve, during which the tenant is usually seeking housing and their eviction continues to be reported.

Troublingly, Minnesota’s public records do not communicate the actual outcome of eviction actions. Tenant screening agencies and public records simply report whether a tenant has had an eviction filed against them. Without additional information, records of tenants who won their eviction case, fell behind on rent but caught up and settled, and actually violated a law are indistinguishable.

Moreover, these records may not even be an accurate measure of a tenant’s reliability—96 percent of Minnesotans who have legal representation win or settle their cases.[17] Yet, national data show only 10 percent of tenants have representation.[18] If only 10 percent of tenants have representation and about a third of self-represented tenants do not appear, an eviction record may be more indicative of whether the tenant had access to legal counsel than their reliability as a renter.

II. THE IMPACTS OF EVICTIONS ARE IMMEDIATELY AND ENDURINGLY DISASTROUS

The impact of evictions has been extensively studied and connected to disastrous outcomes for tenants, most of whom are low-income persons and/or Black mothers.[19] When evictions result in displacement, tenants lose much more than the home they rent: they also lose access to community support, social structures, and stability. The stress and logistical demands of relocation impair job performance and cause adults to miss work.[20] Children experience interruptions in schooling and quickly fall behind their housing-stable peers.[21] The trauma of forced relocation affects the physical and mental health of adults and children alike,[22] and the damage can be long-lasting.[23]

Having an eviction on their record causes problems even when tenants have not been forcibly displaced. Sometimes an eviction record simply reflects a challenging period in a tenant’s life that has since been resolved or a complaint that was filed without merit. The most sinister of these evictions include those filed based on breaches of illegal leases, to punish tenants for reporting health and safety violations, and based on fictional allegations.[24] Potential landlords have no way to unpack an eviction record. They tend to deny applications based on the mere presence of prior evictions.[25] To demonstrate, a Minneapolis couple’s 2018 rental application was preliminarily approved, but because their former landlord had filed evictions against them (one filed in retaliation for reporting lead poisoning and several filed but settled), they were ultimately rejected.[26] At no point was the couple actually removed.[27] Nevertheless, one potential landlord explained he could not determine the reason for the evictions and felt compelled to deny their application.[28] Even worse, all their evictions were outside of Minnesota’s reporting window at the time of their application.[29] Still, these had slipped through the cracks and barred the couple from finding safe, affordable housing.

Tenants with evictions have fewer options for housing because so many landlords rely on eviction records. Often rendered ineligible for federal housing assistance,[30] tenants are forced to rent from unscrupulous landlords,[31] pay higher rent as “security,”[32] or limit their search to neighborhoods with higher instances of crime and unsafe housing conditions,[33] thus creating and sustaining a cycle of poverty.

III. MINNESOTA SHOULD ADOPT LEGISLATION RESTRICTING PUBLIC ACCESS TO MISLEADING EVICTION RECORDS

Landlords understandably need to know if potential tenants are reliable, but viewing an eviction that was dropped or settled with the same suspicion as one brought with merit is unjust. Evictions should not be used to penalize tenants who had a short-term challenge or were on the losing end of an enormous power imbalance. If landlords are going to rely on eviction records, then the records should be probative.

Housing advocates and lawmakers have addressed this need. They have introduced legislation that restricts public access to eviction records to only the instances where the landlord has won a judgment.[34] Additionally, advocates recommend issuing immediate expungements when eviction cases are settled, dismissed, or ruled in the tenant’s favor.[35] Landlords and tenant screening agencies would still have access to the records of tenants who lost an eviction case. However, evictions filed in error, without merit, over temporary circumstances, or as overreactions to interpersonal problems would no longer immediately prejudice tenants who have not been found at fault.

Evictions are a harsh, long-term punishment. The stigma of a prior eviction can make it impossible for tenants to find decent, affordable housing, thus forcing them to rent from unethical landlords who exploit tenants with limited options. Leaving eviction records open contributes to institutionalized racism and perpetuates discrimination against Minnesota’s most marginalized communities.[36] Minnesota’s lawmakers should limit public access to evictions unless and until the landlord has actually won a judgment.

[1] Remarks, Dorinda Wider, Mid-Minnesota Legal Aid Housing Attorney (July 2020).

[2] Minn. R. Pub. Access to Recs. of Jud. Branch 2, 4 (civil records are open to the public with exceptions set out in Rule 4, eviction records are not included in the exceptions).

[3] Minn. Stat. § 504B.001, subdiv. 4.

[4] Minn. Stat. § 504B.285, subdiv. 1.

[5] Non-payment cases account for 93 percent of eviction filings. Minneapolis Innovation Team, Evictions in Minneapolis 2 (2016), https://cdn2.hubspot.net/hubfs/4408380/PDF/Eviction-Reports-Articles-Cities-States/Evictions-in-Minneapolis-Report.pdf [https://perma.cc/T9KJ-9HJB]; Matthew Desmond & Carl Gershenson, Who Gets Evicted? Assessing Individual, Neighborhood, and Network Factors, 62 Soc. Sci. Res. 362, 362 (2017) (“Nonpayment of rent is a [nationwide] leading cause of eviction.”).

[6] Greta Kaul, Evictions, on the Rise Nationwide, Don’t Affect All Parts of Minneapolis Equally, MinnPost (Oct. 25, 2017), minnpost.com/politics-policy/2017/10/evictions-rise-nationwide-don-t-affect-all-parts-minneapolis-equally [https://perma.cc/N2LU-QHEC].

[7] Evictions in Minneapolis, supra note 5, at 7 (“When both parties show up to the hearing, 83% of cases result in a settlement.”).

[8] Minn. Stat. § 504B.365 subd. 3.

[9] Landlords sometimes use the eviction process, despite not having a legal cause of action, because they lack conflict resolution skills. See City of Minneapolis, Evictions and Calls for Service 9 (2018), http://www2.minneapolismn.gov/www/groups/public/@civilrights/documents/webcontent/wcmsp-211935.pdf [https://perma.cc/ZKJ4-HHXB] (discussing how certain landlord trainings portray evictions and notices to vacate as the “only tool to solve problems”).

[10] Minn Stat. § 504B.345

[11] Evictions in Minneapolis, supra note 5, at 4 (finding one third of tenants did not show up for hearings, usually leading to “immediate eviction [judgments.]”).

[12] Minn Stat. § 504B.345

[13] For investigative reporting on the importance of providing notice, see Josh Kaplan, Thousands Of D.C. Renters Are Evicted Every Year. Do They All Know To Show Up To Court?, DCist (Oct. 5, 2020), https://dcist.com/story/20/10/05/thousands-of-d-c-renters-are-evicted-every-year-do-they-all-know-to-show-up-to-court/ [https://perma.cc/B8PF-DSFV].

[14] In Minnesota, most landlord-tenant cases are unreported. To view a thorough exploration of anonymized cases, see Lawrence R. McDonough, Residential Eviction Defense and Tenant Claims in Minnesota, Poverty Law (16th ed. Oct. 2020), http://povertylaw.homestead.com/ResidentialEvictionDefenseandTenantClaimsinMinnesota.html [https://perma.cc/NQN4-Y47W].

[15] Of course, this assumes tenants know they need to request expungement during their proceedings.

[16] Minn. Stat. § 484.014.

[17] Luke Grundman & Muria Kruger, Legal Representation in Evictions – Comparative Study 1 (2018), https://www.minnpost.com/wp-content/uploads/2018/11/2018-Eviction-Representation-Results-Study-with-logos.pdf [https://perma.cc/RT8A-4LZ4] (“Fully represented tenants win or settle their cases 96% of the time . . . and those without any legal services win or settle only 62% of the time.”).

[18] Russell Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, 37 Fordham Urb. L. J. 37, 41 (2010).

[19] See generally Matthew Desmond, Evicted (2016) (highlighting connections between poverty, race, and evictions); Brittany Lewis, The Illusion of Choice: Evictions and Profit in North Minneapolis (2019) http://evictions.cura.umn.edu/illusion-choice-evictions-and-profit-north-minneapolis-full-report [https://perma.cc/X36S-FD36] (reporting landlords disproportionately file evictions against Black women).

[20] “Families . . . are ordered to vacate in a matter of days; if the family is removed by sheriff deputies, its possessions are piled on the curb or confiscated . . . and evicted families must find somewhere else to live very quickly and under considerable duress.” Matthew Desmond & Rachel Kimbro, Eviction’s Fallout: Housing, Hardship, and Health, Social Forces, 2015 at 5.

[21] See generally Samantha M. Shapiro, The Children in the Shadows: New York City’s Homeless Students, NY Times Mag. (September 9, 2020) https://www.nytimes.com/interactive/2020/09/09/magazine/homeless-students.html [https://perma.cc/9WFS-569T] (describing involuntary displacement’s disruptive effect on schoolchildren).

[22] Desmond & Kimbro, supra note 20, at 6 (finding higher rates of depression, stress, and overall poor health in mothers and children who have experienced eviction).

[23] Id. at 22–23 (finding negative effects can endure for several years after an eviction and concluding eviction may be a “cause, not simply a condition, of poverty.”).

[24] Marissa Evans, Minnesota Attorney General Sues Minneapolis Landlord, Star Trib. (Oct. 8, 2019), https://www.startribune.com/minnesota-attorney-general-sues-minneapolis-landlord/562572022/ [https://perma.cc/L37E-NKLC] (landlord Steven Meldahl’s leases charged tenants if they called city inspectors for health and safety violations); see also Press Release, The Office of Minnesota Attorney General Keith Ellison, Attorney General’s Office Wins Next Step in Case Against Landlord Steven Meldahl (Oct. 17, 2019), https://www.ag.state.mn.us/Office/Communications/2019/10/17_Meldahl.asp [https://perma.cc/6BC3-FPJP] (charging Meldahl with running an “evictions for profit scheme.”); Matt Sepic, Landlord Frenz Sentenced to Jail Time for Lying on Housing Court Documents, MPR News (Dec. 20, 2019), https://www.mprnews.org/story/2019/12/20/landlord-frenz-sentenced-to-jail-time-for-lying-on-housing-court-documents [https://perma.cc/PBB7-W3SF] (describing landlord Stephen Frenz’s false tenant ledgers and fake noise complaints).

[25] Grundman & Kruger, supra note 17, at 8 (“[l]andlords identify evictions as highly determinative bases for denying housing applications . . . .”).

[26] Max Testarek, Landlord Battles Haunt Twin Cities Low-Income Renters, MPR News (Feb. 22, 2018) https://www.mprnews.org/story/2018/02/22/landlord-battles-haunt-twin-cities-lowincome-renters [https://perma.cc/MN6R-G9Q2].

[27] Their landlord, Steven Meldahl, was notorious for penalizing his tenants for reporting safety violations and gloated about evicting tenants as a means to force profitable settlements or keep their security deposits. See discussion supra note 24.

[28] Testarek, supra note 26.

[29] Id. (explaining Minnesota’s record retention policy).

[30] Alieza Durana & Matthew Desmond, A Massive Wave of Evictions is Coming. Temporary Bans Won’t Help, Wash. Post (April 2, 2020), https://www.washingtonpost.com/outlook/2020/04/08/eviction-coronavirus-rent-homelessness/ [https://perma.cc/4A5P-JKW4] (explaining harms can persist when “eviction papers have been filed but eviction does not occur. An eviction record . . . [can prevent tenants] from accessing federal housing assistance.”).

[31] See supra note 24 (articles detailing the chicanery of Steven Meldahl and Stephen Frenz). Due to their eviction history, the couple in Testarek’s article resorted to renting from Mahmood Khan, another notorious landlord who has had his rental licenses revoked due to thousands of housing code violations. Testarek, supra note 26.

[32] See Andrew Giambone, Eviction Records Could be Sealed or Expunged Under D.C. Proposal, DC Curbed (June 28, 2019), https://dc.curbed.com/2019/6/28/19102673/evictions-housing-landlords-tenants-court-rent-displacement [https://perma.cc/GBH2-YDTV] (reporting that landlords charge tenants with evictions higher rent due to “presumed risk”).

[33] See Richard Florida, How Poor Americans Get Exploited by Their Landlords, Bloomberg CityLab (March 21, 2019), https://www.bloomberg.com/news/articles/2019-03-21/housing-exploitation-is-rife-in-poor-neighborhoods [https://perma.cc/L8LF-ULT7] (detailing how some landlords take advantage of minority and low-income renters’ constrained choices by charging rates much higher than the properties’ values).

[34] H.F. 1511, 91st Leg. (Minn. 2019).

[35] Id.; see also ACLU, Clearing the Record: How Eviction Sealing Laws Can Advance Housing Access for Women of Color (Jan. 10, 2020), https://www.aclu.org/news/racial-justice/clearing-the-record-how-eviction-sealing-laws-can-advance-housing-access-for-women-of-color/ [https://perma.cc/3TC2-ZGBD] (calling for similar legislation in Massachusetts); Housing Action Illinois, Prejudged: The Stigma of Eviction Records (2018), https://housingactionil.org/downloads/EvictionReport2018.pdf [https://perma.cc/9MXB-GUZQ] (calling for similar legislation in Illinois).

[36] Kaul, supra note 6.